Constitutional history of Chile

Background

Chile is located in southern South America, bordering the South Pacific Ocean, between Argentina and Peru. It spans 756,950 square kilometers. The estimated 2014 population numbered approximately 17.4 million, 88.9 percent of which is white or non-indigenous, with the remaining 11.1 percent from the Mapuche and other indigenous groups. The country is divided into fifteen regions, with the city of Santiago as its capital. 89 percent of the population resides in urban areas.

Chile's market-oriented economy, with its relatively well-diversified and well-regulated financial system, is generally regarded as a model for other Latin American countries. According to the World Bank, Chile's economy has been the fastest growing in Latin America during the past fifteen years. The 1990s, however, was a difficult period as Chile experience a backdrop of global financial crisis and negative investor sentiment about emerging markets. In 1999, severe drought and Chile's over-dependence on commodity exports such as copper, among other factors, pushed the country into recession. Chile has since recovered, with a real GDP growth averaging 5.0 percent between the years 2003 and 2007, and its GDP per capita in 2007 was US$14,300. The Economist credits this growth to the stable macroeconomic policies that have been put in place over the past two decades and in particular the counter-cyclical fiscal policy developed by Ricardo Lagos's government (2000-06). However, some argue that Chile's economic policies are overly cautious and the government should do more to encourage growth.

The Portales Constitution

Chile’s independence from Spain on April 5, 1818, marked by the Spanish defeat at the Battle of Maipu, was followed by a period of near-anarchy. In 1829, conservative forces led by Diego Portales succeeded in asserting control over the country. Portales, who became the de facto ruler of Chile, also wrote Chile’s first long-lasting constitution. The Portales constitution established a strong central government dominated by the chief executive. For most of the nineteenth century, the president presided over a gradual institutionalization of representative practices and expansion of suffrage. These developments were accompanied by growing challenges to executive authority by the political parties sitting in the National Congress. The struggle for power between different governing branches escalated into a brief civil war in 1891 that was won by congressional forces and paved the way for a parliamentary republic.

The 1925 Constitution

Chile’s next constitution was adopted in 1925, in the midst of instability and discontent generated by the First World War and related events such as the collapse of the nitrate export trade, the articulation of new political ideologies, and the rise of the labor movement. Parliamentary democracy had been discredited—the perception of Congress was of a group of conservative and corrupt elites that opposed social reform and could not respond effectively to Chile’s political and economic problems. New and radical parties flourished, on both left and right sides of the political spectrum.

The 1925 constitution largely followed the classical liberal and democratic lines of its predecessor, thus allowing for institutional continuity. At the same time, it codified a number of significant changes: the separation of church and state, recognition of workers’ right to organize, a promise to care for the social welfare of all citizens, an assertion of the state’s right to infringe on private property for the public good, and an increase in the powers of the now directly elected president vis-à-vis the bicameral Congress. The government was divided into four branches: the executive, the legislature, the judiciary, and the comptroller general.

Military Rule and the 1980 Constitution

In the wake of the Cuban Revolution of 1959, politics in Chile became increasingly polarized between left-wing and right-wing factions. Centrist parties were no longer able to mediate the agreements and compromises that had previously enabled the smooth functioning of Chilean politics. Matters came to a head during Salvador Allende’s presidency, which pitted Allende’s coalition of leftist parties against the center-right opposition. The March 1973 congressional elections, which each side had hoped would give it a clear governing mandate, provided the catalyst—inconclusive results led to an escalation of the confrontation, with violent street demonstrations and threats of insurgency. On September 11, 1973, a military junta composed of the heads of the Army, the Navy, the Air Force and the national police led a coup to overthrow the Allende government, alleging constitutional violations, and to impose military rule.

Days after the coup, the junta appointed a commission to begin crafting a new constitutional order that could legitimize the military

The 1980 constitution has been described as a “dual constitution” that contained “transitional” as well as “permanent” articles. The transitional articles would apply during the transitional period of military rule, with Pinochet as President and the junta holding constituent and legislative power. In 1988, the junta was to appoint a Presidential candidate to be approved by plebiscite to lead Chile for the next eight years. The permanent articles were intended to create a “protected” democracy through: first, the establishment of a permanent tutelary role for the military; second, a prohibition upon persons, parties and movements whose views and objectives were judged by the Constitutional Tribunal to be hostile to democracy (“article 80”); and third, a series of checks on representative governmental institutions.

Constitution Building Process

Beginning in 1987, the Chilean political opposition accepted that the Pinochet regime could not be overthrown by popular revolt or guerilla warfare, but had to be challenged from within the constitutional system that the military government had itself created. A group of opposition parties formed the Concertación por el No coalition (the “Concertación”) to campaign for a “no” vote in the upcoming 1988 plebiscite. The Concertación’s efforts at voter registration, publicizing its cause and voting oversight resulted in Pinochet’s defeat on October 5 by a 55% vote. Under the constitution, this meant that presidential and parliamentary elections would be held in December 1989.

In the period between the plebiscite and the presidential elections, three-way negotiations over constitutional reform were held between the military government, moderate right-wing parties that supported the government, and the center-left opposition. There was no public discussion or participation. The agreed-upon reforms, which were approved in a July 30, 1989 plebiscite, reflected compromises made by the opposition rather than any far-reaching constitutional change: article 80 was eliminated; the number of elected senators was increased; the constitutional amendment mechanism was modified; the President’s ability to dissolve the lower house of Congress was removed and his power to declare a state of exception was reduced; a new civilian member was added to the National Security Council. The military succeeded in including a provision that laws that dealt with the armed forces would be governed by an organic constitutional law, increasing the difficulty of amending such laws. Political sociologists have argued that the effect of these reforms, which accepted the foundations of the 1980 constitution and were achieved through bargaining, was to make Chile’s transition a transición pactada (transition by agreement) and not a transición por ruptura (transition that broke with the previous order).

Constitutional developments: 1989-2014

Governments since the 1989 reforms have been engaged in reforming Chile’s constitution. Important changes have included: allowing for the direct election of municipal councilors; Supreme Court and criminal justice reform, and the enshrining of gender equality. The 2005 amendments are considered to be the greatest steps toward democracy in Chile, reducing the presidential term from 6 to 4 years, reducing military influence in politics—by transforming the National Security Council into an advisory body to the President, eliminating appointed senatorial seats, and giving the President the power to dismiss the commanders-in-chief of the armed forces and the national police—and removing the current electoral system from the constitution in order to open the process to future reform.

In 2013, Michelle Bachelet, of the socialist party, was elected to a second presidential term—the first being from 2006 to 2010, as the Constitution prohibits consecutive terms. Her campaign promised to replace the Constitution created during Pinochet’s dictatorship, arguing that Chile needs “a constitution born in democracy [as the current one] is illegitimate.” Her major focuses are education, tax reform, and addressing the country’s inequality. Opposition politicians raised concerns that changing the Constitution would create uncertainty, which could have a negative impact on foreign investment and the economy as a whole. Also, because of the large Catholic population in the country (66.7%), Bachelet is expected face resistance on reproductive rights reforms.

Less than a fortnight after Bachelet took office, over 100,000 Chileans from more than 40 civil organizations participated in The Protest of All Protests, calling for the Constitutional changes that had been promised during the campaign. Protesters claimed that the march was not in opposition to the President but rather to inform the politicians that the people have demands. Those demands include self-determination for the indigenous people, egalitarian marriage with child adoption, and healthcare.

Structure of Government under the current Constitution

Executive

The executive branch is headed by the President of the Republic, who serves a four year term and is not eligible for consecutive re-election. The President must be at least 35 years of age and a citizen of Chile. The President’s powers include participation in law making, oversight of the judiciary, and the ability to demand a session of Congress or a plebiscite. The Ministers of State, appointed by the President, must grant their approval of any Presidential regulations or decrees. The Ministers must be at least 21 years of age.

Legislative

The legislature of Chile is a bicameral system composed of the Chamber of Deputies and the Senate. Members of each branch are elected during the same election cycle as the president. 120 members of the Chamber of Deputies are elected in direct voting by 60 two-member electoral districts for four year terms. They must be at least 21 years old, have completed a secondary education, and have resided in their respective electoral district for no less than two years before the date of the election. The 38 members of the Senate are elected by direct vote in 19 two-member circumscriptions for eight year terms, half renewed alternately every four years. Senators must be at least 35 years of age and have completed a secondary education. Members of both branches may serve additional terms.

Judicial

The Courts of Chile address civil and criminal matters. The Supreme Court is composed of twenty-one ministers, appointed by the President, who choses from 5 nominees provided by the Court. Five members of the Court must be lawyers from outside the administration of justice with at least 15 years of experience. Judges for the Court of Appeal are appointed by the President from a list of three nominees provided by the Supreme Court. Judges for lower courts are appointed by the President from a list of three nominees from the Court of Appeals of the respective jurisdiction. No person may sit as a judge upon reaching the age of 75.

Constitutional matters are determined by the Constitutional Tribunal. The Tribunal is composed of 10 members. Three are appointed by the President, four are elected by National Congress, and three are elected by the Supreme Court. Members serve 9 year terms, partially renewed by threes, and may only serve one term. Members of the Tribunal are irremovable unless they reach 75 years old.

System of Government under the current Constitution

Timeline for Constitution Building Process

1810 September 18

Chile formed its first independent government.

1814

Spain reconquers Chile and resumed rule.

1818 April 5

Battle of Maipu - Chile defeated the Spanish and declared independence. Period of near-anarchy ensues.

1829

Diego Portales leads a conservative reaction against the political instability and brokers a constitutional compromise between factions within the oligarchy.

1833

Chile adopts its first constitution (the 'Portales constitution').

1879

War of the Pacific (with Peru and Bolivia) - Chile expands its land area and gained mineral deposits.

1891

Civil war between executive and legislative factions of government results in a reduction in presidential power and the rise of a parliamentary republic.

1924

Army becomes directly involved in politics.

1925

Chile adopts a new constitution (the 'Alessandri constitution').

1931

Dictatorship of General Carlos Ibáñez ends and the military hands power back to politicians.

1973 September 11

Military coup led by army commander-in-chief Augusto Pinochet - the military takes complete control of public affairs and suspends all political activity.

1973 September - 1978 August

Ortúzar Commission, appoints by the military government, works on drafting a new constitution.

1978 November - 1980 July

Ortúzar Commission draft constitution published. State Council, consultative body created by the military government, reviews draft constitution. Public feedback solicited but participation kept to a minimum.

1980 August

Military junta approves draft constitution.

1980 September 11

Plebiscite held to confirm constitution - 67 percent of voters vote in favor.

1981 - 82

Severe economic crisis and concomitant social unrest.

1987

Seventeen political parties created the Concertación por el No coalition ("Concertación") in opposition to the military government.

1988 October 5

Plebiscite held on appointment of the junta's candidate (Pinochet) as President for eight years -55 percent of voters vote to elect a new president and a democratic Congress.

1988 October - 1989 July

Constitutional negotiations between opposition parties, parties in support of the military government, and the government itself.

Montes, J. Esteban & Tomás Vial, The Role of Constitution-Building Processes in Democratization—Case Study: Chile, Institute for Democracy and Electoral Assistance, available at http://www.idea.int/conflict/cbp*